Analysis Interpretation of the news based on evidence, including data, as well as anticipating how events might unfold based on past events

Why big business keeps winning at the Supreme Court

The rest of us will lose out to corporate power without populist justices.

By Adam Winkler

June 26, 2017

There was one constant in the Supreme Court term that ends Monday — corporations usually won. (J. Scott Applewhite/Associated Press)

The Supreme Court has undergone historic change over the past year or so. It lost its most distinctive voice, added a new justice after an unprecedented political battle and now faces rumors about swing Justice Anthony M. Kennedy’s impending retirement. Yet one thing remains constant on a dynamic Supreme Court: corporations and business interests win.

The term ending Monday lacked the sort of high-profile cases that draw wide public attention, such as marriage equality or affirmative action. Yet the court’s docket was filled with cases involving conflicts pitting business against consumers and workers. Although they do not generate big headlines, these cases profoundly affect the lives of millions of ordinary people — and the court usually sides with business.

Because these cases also have an impact on the bottom lines of many American corporations, the U.S. Chamber of Commerce was once again one of the most active groups in the Supreme Court this term. The chamber filed “amicus,” or friend-of-the-court, briefs in 15 cases. More impressive still is the chamber’s record: 11 wins and only three losses (one case remains to be decided).

When the chamber wins, it is often common people who lose. The court this term sided with the organization and held that debt-collection companies do not engage in a false, deceptive or unfair practice by filing stale, unenforceable claims against a person in bankruptcy — even though the whole point of those claims is to fool people into paying money they are not legally obligated to pay.

In other cases this term, the court limited the ability of states to protect residents of a nursing home from being forced into arbitration; erected new hurdles for people seeking to bring class actions; and restricted the ability of the Securities and Exchange Commission to force people convicted of securities fraud to pay back their ill-gotten gains. In each of these cases, the court ruled in favor of the side supported by the chamber.

The chamber’s success rate is nothing new: In the past six terms, the court has ruled with the chamber 74 percent of the time the group has gotten involved in cases that come before it. That’s a record of 65 wins out of 87 cases, with one still to be decided.

Studies have shown that the court, led by Chief Justice John G. Roberts Jr., is the most business-friendly court in nearly a century, and the cases decided this term only buttress that finding. Of the 19 decided cases pitting corporations or business entities against individuals or government agencies — regardless of whether the chamber filed a brief — the court ruled in favor of business 14 times, or 74 percent of the time.

The success of business interests before the nation’s highest court is not due simply to a conservative majority of justices. Neil M. Gorsuch participated in only a handful of cases, and for most of the term, there were an even number of liberals and conservatives. Yet the notoriously ideologically divided justices came together this term, as they often do, in cases involving business.

Indeed, the most remarkable thing about this term was that it was liberal justices who led the charge for business. The court’s opinion in the debt collectors case was written by Stephen G. Breyer. Elena Kagan wrote the opinion in the arbitration case. Ruth Bader Ginsburg wrote the opinion in the class action case. Sonia Sotomayor wrote the opinion in the securities fraud case.

The court’s near-consensus in business cases is tied to a larger phenomenon: the abandonment by progressives and liberals of their traditional focus on issues of economic justice and income inequality. Such issues were once central to liberal legal thought. More than 70 years ago, President Franklin D. Roosevelt proposed a “Second Bill of Rights” that focused on economic rights, such as access to housing, health care and a social safety net. He also nominated to the court economic populists such as Hugo Black and William O. Douglas, who were committed to curtailing the judge-made rights of corporations, expanding consumers’ access to courts and empowering government to protect workers and others easily taken advantage of by the large corporations of the postwar era.

Today’s court is composed of excellent jurists, with a variety of different judicial philosophies. There are originalists such as Clarence Thomas, textualists such as Gorsuch, pragmatists such as Breyer. None of the justices, however, are economic populists in the vein of Black or Douglas.

Recent Democratic presidents — Bill Clinton and Barack Obama — eschewed the politics of economic equality — as is reflected in their choices for the high court. Of the four confirmed justices they nominated, three (Ginsburg, Breyer and Sotomayor) were endorsed by the Chamber of Commerce. The chamber took no position on Kagan, although she has since sided with the chamber more often than not.

Recent Republican presidents, by contrast, have prioritized economic issues, and several of the conservative justices were probably chosen in part because they are committed to scaling back government regulation, expanding property rights and limiting lawsuits against business. The surprising thing is how often their colleagues nominated by Democratic presidents join them.

Since November, Democrats have been debating whether the party must embrace economic populism to win back white working-class voters. But economic justice is not just about winning elections. It is also about winning cases. And until Democrats begin nominating economic populists to the nation’s highest court, consumers and workers will continue to lose time and again to business.

President Trump's travel ban has been challenged in court at every turn. Now the Supreme Court is allowing a limited version to take effect, but with an expanded list of familial exemptions. (Jenny Starrs/The Washington Post)